Lead Agency Dispute: Town of Brighton Consolidated Sewer District v. State University Construction Fund
New York State Department of Environmental Conservation Commissioner's Determination of Lead Agency Under Article 8 of the Environmental Conservation Law
Empire State College Rochester Regional Center, Town of Brighton, Monroe County
Town Board of the Town of Brighton, as commissioners of the Town of Brighton Consolidated Sewer District and the State University Construction Fund
I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL]; see also Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). The request for a designation of lead agency concerns the proposal by the State University Construction Fund (SUCF) to finance and construct the Empire State College Rochester Regional Center in the Town of Brighton, Monroe County. The SUCF provides design and construction services for the State University of New York pursuant to Article 8-A of the Education Law. The disputing agencies are the Town Board of the Town of Brighton, as commissioners of the Town of Brighton Consolidated Sewer District (Town of Brighton) and SUCF. This designation of SUCF to serve as lead agency is based upon my finding that the SUCF has the broadest governmental powers for investigation of the impacts of the proposed action by virtue of its control over all aspects of design, construction, and operation of the proposed educational facility.
Action and Site
Specifically, the action is a proposal by the SUCF to construct a regional center for Empire State College, a unit of the State University of New York, on an 11.92-acre parcel owned by the SUCF. The project is located at 1915 Clinton Avenue South (the westerly side of the road), generally opposite the intersection of Clinton Avenue South and Rue DeVille, within the Town of Brighton.
The project will involve construction of a regional center building for the Empire State College (33,032 gross square footage with a 14,220-square-foot building footprint), an access driveway, parking for 100 vehicles, paved walkways to the building, patio area, infrastructure lines and connections to service the building (including sanitary sewer, water, electric and gas, and telecommunications), site lighting, stormwater management, landscaping, and signage. According to the environmental assessment form prepared by SUCF for the project, the total amount of land to be disturbed is 4.59 acres.
Present land use of the surrounding area is mixed residential, commercial and office. The project lies within the Monroe County Water Authority Service, and public water is available to the site. The project site is situated just outside the Town of Brighton Consolidated Sewer District. According to the Town of Brighton, SUCF must petition the commissioners of the Town of Brighton Consolidated Sewer District for an extension of the district to obtain service from the district.
Based on letters received on behalf of the Town of Brighton, dated April 18, 2011 and May 8, 2011, and letters on behalf of the SUCF, dated April 11, 2011 and May 5, 2011, the jurisdictions asserted by the agencies involved with this project, which I accept for purposes of resolving this lead agency dispute, are as follows:
- The Town Board of the Town of Brighton, as commissioners of the Brighton Consolidated Sewer District, has jurisdiction and authority to review and approve sanitary sewer district extensions and sewer main extensions and connections.
- The State University of New York Construction Fund owns the land and has jurisdiction through funding, capital planning, design, and construction services for the proposed Rochester Regional Center project.
- Monroe County Water Authority has jurisdiction through review and approval of public infrastructure pertaining to water main extensions, water service / backflow prevention.
- Monroe County Department of Public Health has jurisdiction through review and approval of public infrastructure including water main / sanitary sewer main extensions, water service /backflow prevention.
- The New York State Department of Environmental Conservation (DEC) has jurisdiction over stormwater management on the site through the Department's General Stormwater Permit process.
Lead agency for a SEQR review may be assumed only by an involved agency with authority to make discretionary decisions concerning one or more components of the overall plan. Based on the jurisdictions asserted in their filings, the Town of Brighton and SUCF both appear to satisfy the criteria to be considered involved agencies, and both have stated their interest in serving as lead agency.
No other involved agencies have sought lead agency status or commented on the request for lead agency designation.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617. 6 (b) (S) (v):
- whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);
- which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and
- which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.
A. First Criterion
The first criterion asks whether the potential impacts from the proposed action are of local, regional, or statewide significance. In the case at hand, the expected impacts from the proposed regional center are predominantly local in nature, with very limited regional or statewide impacts anticipated. First, the proposed facility is located entirely within the Town of Brighton. As such, there is an anticipated increase in demand on local community services. Second, impacts from construction activities are also primarily local. Construction activities typical of a project of this size and type involve construction machinery noise, dust, clearing, grading, paving, landscaping, and traffic from machines and workers. Off-site operations or activities will primarily involve truck and automobile traffic using local and county roads that may involve some changes in traffic pattern and general safety concerns. Visual impacts are also possible due to removal of vegetation and the size and scale of the proposed project. Once constructed, it is expected that facility operation will generate traffic utilizing several roads, including but not limited to town and county roads.
While this criterion favors the Town of Brighton, all other considerations do not appear to be equal, so I must examine the remaining two criteria.
B. Second Criterion
The second criterion asks which agency has the broadest governmental powers for investigation of the impacts of the proposed action. This criterion strongly favors the SUCF.
The SUCF, as the sponsor of the proposed project and the party responsible for obtaining all necessary permits or approvals, has control and authority to design, modify, alter, or rearrange proposed activities at the site as well as to investigate all of the impacts associated with the project identified through the SEQR analysis and review.
SUCF also asserts, based on New York State Education Law §375.3 that the Town of Brighton has very restricted powers to effect change or alteration of the primary components of this project. Under § 375.3, "..... no county, city, town or village shall have power to modify or change the plans or specifications for facilities ... nor to require that any such person, firm or corporation obtain any other or additional authority or permit from such county, city, town or village as a condition of doing such work…".
On its face, therefore, §375.3 limits the breadth of the Town of Brighton's powers to fulfill the role of lead agency inasmuch as its capacity to design or shape the project has been preempted.
The Town of Brighton argues that, notwithstanding any limits placed on the Town's authority by virtue of §375.3, it has (acting in the Town Board's capacity as commissioners of the Brighton Consolidated Sewer District) jurisdiction and authority pursuant to Town Law §194 over approvals for extending the sewer district and sewer main extensions and connections. In making such approvals under Town Law §194, the Town Board must consider the benefit to the property and owners in the proposed district; whether all benefited property and owners are in the proposed district; and whether it is in the public interest to approve the extension. See Kraizberg v. Shankey, 167 A.D.2d 370 (2d Dept. 1990). While this authority appears to be discretionary and significant, it is more limited than SUCF's authority as the project sponsor and financier and taking into consideration the restrictions placed on the Town of Brighton's land use authority by Education Law 375.3.
Based upon a careful consideration of all the facts presented, I find that the second criterion, breadth of authority, favors the SUCF. The SUCF, as the project sponsor responsible for funding and construction, has the ability to modify project elements to avoid or reduce impacts. The SUCF is thus best suited to follow up with changes and alterations that may be identified as a means to avoid or mitigate potential impacts identified through the SEQR process.
C. Third Criterion
The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. Both contesting agencies have demonstrated the capability to review projects under their jurisdiction. As a practical matter, both agencies have equal capacity to conduct a review of this project using existing in-house staff or by contract for additional professional assistance.
Therefore, I find that the third criterion favors neither of the disputing agencies to serve as the lead agency for the review of this project.
I find that the SUCF should serve as lead agency for the environmental review of the proposed regional center because the SUCF has broader governmental powers to investigate the impacts of the project as well as to avoid or mitigate such impacts. This designation in no way changes or diminishes the responsibility or authority of other involved agencies with jurisdiction over the project, nor does it hamper the participation of any interested agencies.
While designating the SUCF as lead agency, I must remind it to remain aware of any potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review.
In making its determination of significance under SEQR, I encourage the SUCF to solicit analyses and comments from the Town Board of the Town of Brighton. I would point specifically to possible inconsistencies raised by the Town of Brighton regarding the proposal and the Town of Brighton Comprehensive Plan 2000 and also suggest that the environmental review be broader than a reliance on capacity of infrastructure when assessing local impacts. Under Town Law §272-a(11) (b), [a]ll plans for capital projects of another governmental agency on land included in the town comprehensive plan adopted pursuant to this section shall take such plan into consideration."1 Continued consultation between the SUCF and all other involved agencies will enable the SUCF to better identify the full range of potential impacts of the project and, if necessary, explore alternatives and mitigation to avoid or minimize those impacts.
1SUCF should also consider the applicability to its project of the State Smart Growth Public Infrastructure Policy Act, as codified in ECL §60101. et seq
/S/ Joseph J. Martens, Commissioner
Dated: July 7, 2011
Albany, New York
Distribution of Copies:
Town Board of the Town of Brighton, Attn: Sandra L. Frankel, Supervisor
State University Construction Fund, Attn: Margaret C. McSorley
Monroe County Dept. of Public Health, Attn: John Felsen, Mgr of Environmental Health
NYSDEC Region 8, Attn: Scott Sheeley, Regional Permit Administrator
New York State Department of Transportation, Region 4
Monroe County Water Authority
Monroe County Department of Transportation
State University of New York, President of Empire State College
State University of New York, Director of Capital Projects, Empire State College
Dormitory Authority of the State of New York
New York State Department of Environmental Conservation
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office
Robert Ewing, Division of Environmental Permits, Central Office